UR Nation End of Month Regulatory News Summary

As the month draws to a close, here’s a summary of some of the more important regulatory news stories from April.

Report Led by UC Davis Shows Long Term Use of Marijuana Problematic

A report led by UC Davis researchers shows that frequent marijuana users (defined as smoking 4 or more joints per week) are at greater risk to move down the socioeconomic ladder than are non-users.

Specifically, 52 percent of middle class frequent marijuana users experienced downward mobility compared to only 14 percent of non-users. Conversely, 33 percent of non-users moved up the socioeconomic ladder, but just 7 percent of regular users did. The report did not analyze whether or not marijuana should be legal.

Ohio Bureau of Workers’ Comp Cut Opioid Use by 41 Percent

The total number of opioid doses in Ohio dropped 41 percent as a result of the state’s pharmacy management program that includes a closed prescription drug formulary. John Hanna, the Bureau’s pharmacy program director, told the Ohio Dispatch that the number of workers considered to be opioid dependent has declined from 9,343 in 2011 to 4,723 today. The Bureau is now examining additional steps including adding opioid prescribing guidelines to the Ohio Administrative Code and is also looking at language around weaning injured workers off opioids.

The Arizona Industrial Commission is proposing to adopt rules that would create a utilization review (UR) process to ensure requests to treat chronic pain or use opioids are in accord with evidence based guidelines. Under the plan, doctors would not be required to submit requests for prior authorization, but they would be allowed to do so. When doctors submit authorization requests, the rules would require the payer to approve or deny the request within 10 days in most cases. If a payer denies the request, the injured worker or provider could request peer review to discuss the decision. If the request is denied after peer review, the dispute would go to the Industrial Commission for review. The provide could then appeal the Industrial Commission’s decision to an administrative law judge.

Colorado Ballot Initiative Called “ColoradoCare” Would Include Workers’ Comp in Single Payer System

The initiative, if passed, would pay for medical treatment for all residents and be the first single payer system in the country. It would include treatment for on-the-job injuries. The amendment would levy a 3.33 percent payroll tax on workers and a 6.67 percent payroll tax on employers, as well as a 10 percent health care premium tax on non-payroll income. The initiative is extremely complicated, and would for example, seek a waiver from the federal government that would redirect federal funds from Medicaid to Colorado Care. The goal would be to raise $25 billion to pay for the program. A 21-person board of directors would oversee Colorado Care.

Pinnacol Assurance, Colorado’s state-chartered workers’ comp carrier, sent out a memo in which they call Amendment 69 “bad for workers’ compensation and injured workers.” Their arguments against it include that it will double the size of the state budget, hit businesses hard with new taxes that may make them uncompetitive, and will be embedded in the state constitution, making it extremely hard to repeal should it prove to be a bad system.

New York is The First State to Require Prescribers to Electronically Prescribe or Face Penalties

As is fully set forth in the FAQ guide, all physicians must use the state’s new electronic prescribing system and should also use the prescription drug monitoring program called I-STOP (Internet System for Tracking Over-Prescribing).

Unfortunately, the electronic prescribing system and PDMP are not directly linked. “That would make this process so much more effective and valuable,” said Brian Allen of Helios. “Linking the systems would make prescription monitoring real-time.” Tying the systems together might also save time for doctors and their staff, who currently must check the prescription monitoring database in a step separate from submitting the electronic prescription.

Supreme Court of California to Hear King v. CompPartners

The Supreme Court of California will hear the King v. CompPartners case. As a reminder, in January 2016 the California Court of Appeal ruling that a UR physician could be sued for malpractice for failing to warn an injured worker of the adverse effects of immediately ceasing klonopin. It will be interesting to see what the Supreme Court says. Because the California legislature set up the system of UR and deemed it unnecessary for the UR physician to physically examine the injured worker as part of the review, the Supreme Court may rule that a UR physician has no doctor patient relationship and therefore cannot be sued for malpractice. This is especially true in light of IMR. If an injured worker (or his treating physician) disagrees with the UR physicians’ modification or adverse determination, then they can pursue IMR as mandated by SB 863.

Supreme Court of Oklahoma Struck Another Provision of Oklahoma’s Opt Out Law

In the case of Theresa Maxwell v. Sprint PCS, the Supreme Court of Oklahoma struck a provision that gives an employer an offset from their permanent partial disability (PPD) liability. Specifically, if an injured employee gets a PPD award, and that employee later returns to work, the employee will have to forfeit a portion of the award.

The Supreme Court of Oklahoma said that “this impermissibly creates a subclass of employees subject to different treatment” and was therefore a violation of due process under the constitution. You may remember that last month the Supreme Court of Oklahoma struck another provision of Oklahoma’s Opt Out plan. That provision was the 180-day cumulative injury (CT) claim ban. In other words, an employee could not make a work comp claim for something like carpel tunnel within the first six months of employment. The Supreme Court of Oklahoma found that to be unconstitutional.

Applicant attorney Bob Burke has his sights set on other portions of Oklahoma’s Opt Out plan. He said the Supreme Court’s ruling “was another example of the court having to correct a poorly written law that was thrown into the laps of legislators in the final few days of the 2013 legislative session.” He expects to continue to be successful in getting other portions of the law struck.

Tom Swiatek

As Assistant Vice President of Regulatory Services, General Counsel, and Editor in Chief of UR Nation, Tom Swiatek draws on his experience as an insurance attorney on both the general liability side, as well as on workers’ compensation matters. As a California Workers’ Compensation Section Member, Tom is leading the discussion with respect to the regulatory challenges and opportunities facing the workers’ compensation system.